Citation Nr: 0434340
Decision Date: 12/29/04 Archive Date: 01/05/05
DOCKET NO. 02-11 369 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Whether a May 26, 1995, rating decision that denied
entitlement to service connection for gum disease contained
clear and unmistakable error.
2. Whether an October 20, 1999, rating decision that denied
reopening a claim of entitlement to service connection for
heart disease on a direct basis contained clear and
unmistakable error.
3. Whether new and material evidence has been presented to
reopen a claim for service connection for heart disease on a
direct basis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Dillon, Counsel
INTRODUCTION
The veteran served on active duty from May 1957 to September
1960 and from September 1990 to December 1994. He also had
periods of active and inactive duty for training.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from October 1999 and January 2002 rating decisions
from the Department of Veterans Affairs (VA) Regional Office
(RO) in Boston, Massachusetts. In October 1999, the RO
denied reopening a claim of entitlement to service connection
for a heart disorder on a direct basis. In January 2002, the
RO found that clear and unmistakable error was not committed
in a May 26, 1995, rating decision that denied entitlement to
service connection for gum disease and in the October 1999
rating decision that denied reopening the claim for service
connection for a heart disorder.
The veteran, however, need not satisfy the high standard of a
showing of CUE in the October 20, 2999, rating decision
because that decision never became final. As explained
below, a statement received in November 1999 has been
construed as a timely notice of disagreement. The veteran
has initiated, but not perfected, an appeal of the petition
to reopen the claim for service connection for heart disease
on a direct basis. This issue is REMANDED below to the RO
via the Appeals Management Center (AMC), in Washington, DC.
A personal hearing was held at the RO in August 2003. The
case was before the Board in June 2004, when it was remanded
for a hearing before a Veterans Law Judge. In September
2004, the veteran and his accredited representative appeared
at the Boston RO and provided testimony before the
undersigned. A transcript of the hearing is of record.
In an April 2004 statement from the veteran's representative,
it is argued that the veteran's service-connected
gastroesophageal reflux disease caused his dental condition.
As this issue has not been adjudicated, it is referred to the
RO for appropriate action.
The September 2004 hearing testimony discussed the issue of
secondary service connection for a heart disorder. See also
Statement from the veteran's representative, dated June 10,
1999. Entitlement to service connection for a heart disorder
on both a direct and secondary basis was denied by the RO in
a final June 1997 rating decision. The October 1999 rating
decision, however, contains no wording or analysis to suggest
that the RO's adjudication of the claim to reopen considered
the criteria for secondary service connection. Therefore,
the petition to reopen the claim for service connection for a
heart disorder as secondary to service-connected bronchial
asthma with chronic bronchitis is also referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The veteran submitted a timely notice of disagreement
with the October 20, 1999, rating decision that denied
reopening a claim of entitlement to service connection for a
heart disorder on a direct basis.
2. With regard to the adjudication of the final May 1995
rating decision in question, it has not been shown that
either the facts or applicable statutory and regulatory
provisions existing at the time were ignored or incorrectly
applied.
CONCLUSIONS OF LAW
1. The October 20, 1999, rating decision that denied
reopening a claim of entitlement to service connection for a
heart disorder on a direct basis is not final, and therefore,
not subject to an attack of clear and unmistakable error.
38 C.F.R. § 3.105(a) (2004).
2. Clear and unmistakable error was not committed in the May
1995 rating decision that denied entitlement to service
connection for gum disease. 38 C.F.R. § 3.105(a) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Whether an October 20, 1999, rating decision that denied
reopening a claim of entitlement to service connection for
heart disease on a direct basis contained CUE
In a rating decision dated October 20, 1999, the RO denied
reopening a claim of entitlement to service connection for a
heart disorder on a direct basis. The veteran was notified
of this decision and of his appellate rights by letter dated
October 28, 1999. In a statement received at the RO on
November 17, 1999, the veteran referenced that rating
decision stating: "denial for Heart Condition and VAMC
Hypertension treatment dated October 28, 1999. Undersigned
wishes to appeal decisions." This statement is accepted as
a timely notice of disagreement with the October 1999 rating
decision. See 38 C.F.R. § 20.201 (2004). According, that
decision is not final. The veteran has initiated, but not
perfected an appeal. See 38 C.F.R. § 20.200; Manlincon v.
West, 12 Vet. App. 238 (1999). As the veteran cannot raise
CUE with respect to a rating decision that is not final, the
claim for CUE is dismissed. See 38 C.F.R. § 3.105(a)
("Previous determinations which are final and binding . . .
will be accepted as correct in the absence of clear and
unmistakable error.") (emphasis added); Best v. Brown, 10
Vet. App. 322 (1997) (appellant cannot raise CUE with respect
to a rating decision that is not final). Finally, VA's duty
to notify and assist does not extend to this claim, as there
is no legal basis to grant it. See VAOPGCPREC 5-04; Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
II. Whether a May 26, 1995, rating decision that denied
entitlement to service connection for gum disease contained
CUE
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096, effective on November 9, 2000,
redefined VA's duty to assist and enhanced its duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002). See also 38 C.F.R. §§ 3.102,
3.156, 3.159, and 3.326 (2004) (regulations implementing the
VCAA). The U.S. Court of Appeals for Veterans Claims
(Court), however, has held that the VCAA does not apply to
claims of CUE in prior final rating decisions. See Parker v.
Principi, 15 Vet. App. 407, 412 (2002); Juarez v. Principi,
16 Vet. App. 518, 520-21 (2002) (per curiam order).
In a May 26, 1995, rating decision, the RO denied entitlement
to service connection for gum disease, with consideration of
the veteran's service dental records and VA treatment records
dated from February 14, to May 17, 1995, including from N.
Zager, DMD. The veteran was notified of this determination
and of his appellate rights by letter dated May 29, 1995.
In a note dated May 31, 1995, which was received at the RO in
February 1996, the veteran asked that the RO review the claim
for service connection for gum disease. He provided a
statement from N. Zager, DMD, a VA periodontist, dated May
31, 1995. Dr. Zager stated that the veteran presented to the
clinic on March 30, 1995 and was found to have ADA Class III
periodontitis with moderate bone loss and pocketing.
In August and October 1995, the veteran submitted statements
to the RO referencing the correspondence from Dr. Zager. In
October 1995, he stated, "Bottom line, are you accepting the
evidence of Dr. Zager, or am I going to receive a 'Notice of
Disagreement' with a VA Form 9. I do not want to have to
appeal this service connection gum disease case if it is not
necessary."
In a statement dated in September 1997, the veteran indicated
that he had appealed the May 25, 1995, RO rating decision
that denied service connection for gum disease, but that he
had received no reply from VA.
In March 1998, the veteran was awarded a 30 percent rating
for his service-connected bronchial asthma with chronic
bronchitis. As a result, he stated that he wished to
withdraw all other issues. See Statement in Support of
Claim, dated March 5, 1998; see also 38 C.F.R. § 20.204.
In November 1999, the veteran submitted a statement to the RO
disagreeing with the May 25, 1995, rating decision that
denied service connection for gum disease. In October 2001,
the RO notified the veteran that the November 1999 statement
was not a timely notice of disagreement and that the May 1995
rating decision was final. The veteran was provided notice
of his appellate rights, but did not appeal. Accordingly,
both the May 1995 rating decision and October 2001
determination by the RO are final. 38 U.S.C.A. § 7105(c); 38
C.F.R. §§ 3.104(a), 20.302(a), 20.1103.
The law provides that previous determinations that are final
and binding, including decisions of service connection, will
be accepted as correct in the absence of CUE. Where evidence
establishes such error, however, the prior decision will be
reversed or amended. 38 C.F.R. § 3.105(a).
The Court has held that for there to be a valid claim of CUE,
there must have been an error in the prior adjudication of
the claim. See Russell v. Principi, 3 Vet. App. 310, 313
(1992) (en banc). Either the correct facts, as they were
known at the time, were not before the adjudicator or the
statutory or regulatory provisions extant at the time were
improperly applied. Id. CUE is error that is undebatable so
that it can be said that reasonable minds could only conclude
that the original decision was fatally flawed at the time it
was made. Id. at 313-14. A determination that there was CUE
must be based on the record and law that existed at the time
of the prior adjudication in question. Id. at 314. CUE is
an administrative failure to apply the correct statutory and
regulatory provisions to the correct and relevant facts: it
is not mere misinterpretation of facts. Oppenheimer v.
Derwinski, 1 Vet. App. 370, 372 (1991). The error must be
one that, had it not been made, would have manifestly changed
the outcome at the time that it was made. Kinnaman v.
Derwinski, 4 Vet. App. 20, 26 (1993). See Bustos v. West,
179 F.3d 1378, 1380-81 (Fed. Cir.) (to prove the existence of
CUE, a claimant must show that an error occurred that was
outcome-determinative, that is, an error that would
manifestly have changed the outcome of the prior decision).
Any failure by VA to comply with its duty to assist in the
development of a claim does not constitute CUE. The Court
has held that the failure to provide a veteran with a
"comprehensive medical evaluation" could not, as a matter
of law, serve to vitiate the finality of a prior rating
decision on the basis of CUE. Simmons v. Principi, 17 Vet.
App. 104, 109 (2003). The Court noted that the United
States Court of Appeals for the Federal Circuit had rejected
a nearly identical argument in Cook v. Principi, 318 F.3d
1334, 1341 (Fed. Cir. 2002). The holding in Cook was even
broader: "In summary, a breach of the duty to assist the
veteran does not vitiate the finality of an RO decision."
Id; see also 38 C.F.R. § 20.1403(d)(2) (2004) (applying the
same rule to claims of CUE in prior final Board decisions).
In hearing testimony and argument submitted by the veteran's
accredited representative, the veteran essentially contends
that the rating decision at issue contains CUE because VA
failed to properly assist him in developing his claim prior
to adjudication. Transcript, pp.9-10; Appellant's Brief,
dated April 1, 2004. Pursuant to the holdings in Simmons and
Cook, supra, this argument cannot constitute the basis for
CUE.
To simply claim CUE on the basis that previous adjudication
had improperly weighed and evaluated the evidence can never
rise to the stringent definition of CUE. Fugo v. Brown, 6
Vet. App. 40, 43-44 (1993). The record includes a number of
statements from the veteran addressing the significance of
evidence considered by the RO in the rating decision in
question. For instance, the veteran emphasizes the
significance of medical findings from 1995 VA dental
treatment records that were considered by the RO in its May
1995 rating decision. Such argument, with no specific
allegation that any facts were incorrect, cannot constitute
the basis for CUE.
The record also includes evidence dated after the rating
decision at issue, including statements from Dr. Zager dated
May 31, 1995, and March 14, 2000, and the veteran has
addressed the significance of the medical findings in that
evidence. Such discussion cannot serve as the basis for a
CUE claim because a determination that there was CUE must be
based on the record that existed at the time of the
adjudication in question. Russell at 314 (1992).
Accordingly, the May 1995 rating decision did not contain
CUE, and the veteran's appeal must be denied.
ORDER
Clear and unmistakable error not having been committed in the
May 26, 1995, rating decision that denied entitlement to
service connection for gum disease, this appeal is denied.
The claim for clear and unmistakable error in the October 20,
1999, rating decision that denied reopening a claim of
entitlement to service connection for heart disease on a
direct basis is dismissed.
REMAND
Unfortunately, a remand is required to accord due process.
As noted above, in November 1999, the RO received a statement
from the veteran disagreeing with the October 1999 rating
decision which denied reopening his claim for service
connection for heart disease on a direct basis. No statement
of the case has been provided on this issue, so the veteran
has not had an opportunity to perfect an appeal. In a case
in which a claimant has expressed timely disagreement in
writing with a rating action of the RO, an appeal has been
initiated, and the RO must issue an SOC, and the Board must
remand that issue to the RO for that purpose. See Manlincon
v. West, 12 Vet. App. 238 (1999).
Accordingly, this claim is REMANDED for the following:
Readjudicate the veteran's petition to
reopen his claim for service connection
for heart disease on a direct basis. Any
notice and development necessary should be
conducted prior to readjudicating the
claim. See 38 U.S.C.A. § 5103, 5103A;
38 C.F.R. § 3.159. If the determination
remains adverse to the veteran, furnish
him and his representative a statement of
the case on this issue. Notify him of the
time limit within which an adequate
substantive appeal must be filed in order
to perfect an appeal of this issue and
secure appellate review by the Board.
Thereafter, this issue is to be returned
to the Board only if an adequate and
timely substantive appeal is filed.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). The purpose of this REMAND is to comply with due
process considerations. No inference should be drawn
regarding the final disposition of this claim as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.43 and 38.02.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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